Court sends execution case back to U.S. judge

CAPITAL PUNISHMENT

Published 4:00 am, Tuesday, September 28, 2010

Photo: Michael Macor, The Chronicle

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One of the guard towers, on the perimeter of the State prison, is seen through a row of very dirty windows nearby. Officials from San Quentin State Prison held a tour of the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

One of the guard towers, on the perimeter of the State prison, is seen through a row of very dirty windows nearby. Officials from San Quentin State Prison held a tour of the newly completed Lethal Injection ... more

Photo: Michael Macor, The Chronicle

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Acting Warden, Vincent Cullen just outside the Lethal Injection Facility,(left) which is on the edge of the South Block detention area. Officials from San Quentin State Prison conduct a tour of the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

Acting Warden, Vincent Cullen just outside the Lethal Injection Facility,(left) which is on the edge of the South Block detention area. Officials from San Quentin State Prison conduct a tour of the newly ... more

Photo: Michael Macor, The Chronicle

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Leg restraints dangle from the injection table where the condemned prisoner is executed. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

Leg restraints dangle from the injection table where the condemned prisoner is executed. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 ... more

Photo: Michael Macor, The Chronicle

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A bank of phones inside the injection delivery room would be used if there is a stay of execution. Officials from San Quentin State Prison held a tour of the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

A bank of phones inside the injection delivery room would be used if there is a stay of execution. Officials from San Quentin State Prison held a tour of the newly completed Lethal Injection Facility, on ... more

Photo: Michael Macor, The Chronicle

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The stacks from the old gas chamber where the gas was vented during an execution. Officials from San Quentin State Prison hold a tour of the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

The stacks from the old gas chamber where the gas was vented during an execution. Officials from San Quentin State Prison hold a tour of the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 ... more

Photo: Michael Macor, The Chronicle

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Observers will view the executions through a set of glass windows. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

Observers will view the executions through a set of glass windows. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, ... more

Photo: Michael Macor, The Chronicle

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A prison guard at the Eastern entrance into the prison. Officials from San Quentin State Prison held a tour the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif.

A prison guard at the Eastern entrance into the prison. Officials from San Quentin State Prison held a tour the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif.

Photo: Michael Macor, The Chronicle

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This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, ... more

Photo: Michael Macor, The Chronicle

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This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, ... more

Photo: Michael Macor, The Chronicle

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This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, ... more

Photo: Michael Macor, The Chronicle

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This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, ... more

Photo: Michael Macor, The Chronicle

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Visibile at left is the holding cell, where the condemned prisoner, awaiting execution, is brought. Officials from San Quentin State Prison hold a tour of the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

Visibile at left is the holding cell, where the condemned prisoner, awaiting execution, is brought. Officials from San Quentin State Prison hold a tour of the newly completed Lethal Injection Facility, on ... more

Photo: Michael Macor, The Chronicle

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This Jan. 11, 1971 file photo shows George Blanda, sub quarterback and kicking specialist of the Oakland Raiders. The Oakland Raiders say Hall of Fame quarterback George Blanda has died, Monday, Sept. 27, 2010. He was 83. less

Gov. Arnold Schwarzenegger speaks at the Commonwealth Club in Santa Clara, Calif., Monday, Sept. 27, 2010. Schwarzenegger is blasting the oil companies that are trying to undermine California's global warming law, saying they are motivated purely by greed. less

Gov. Arnold Schwarzenegger speaks at the Commonwealth Club in Santa Clara, Calif., Monday, Sept. 27, 2010. Schwarzenegger is blasting the oil companies that are trying to undermine California's global warming ... more

Photo: Paul Sakuma, AP

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Albert Greenwood Brown is scheduled to die at San Quentin State Prison for the rape and murder of a 15-year-old Riverside County girl abducted on her way home from school in 1980.

Albert Greenwood Brown is scheduled to die at San Quentin State Prison for the rape and murder of a 15-year-old Riverside County girl abducted on her way home from school in 1980.

Photo: AP

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San Quentin State Prison on Tuesday Sept. 21, 2010 in San Quentin, Calif.

San Quentin State Prison on Tuesday Sept. 21, 2010 in San Quentin, Calif.

Photo: Michael Macor, The Chronicle

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Eastern side of San Quentin State Prison on Tuesday Sept. 21, 2010 in San Quentin, Calif.

Eastern side of San Quentin State Prison on Tuesday Sept. 21, 2010 in San Quentin, Calif.

Photo: Michael Macor, The Chronicle

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Court sends execution case back to U.S. judge

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An appeals court late Monday night ordered a federal judge to reconsider his refusal to block the execution of condemned murderer Albert Greenwood Brown and said the state's haste to put him to death appeared to be influenced by the availability of one of the drugs used for lethal injection.

U.S. District Judge Jeremy Fogel of San Jose has denied a stay of execution to Brown, convicted of raping and murdering a 15-year-old Riverside girl in 1980. In a ruling Friday, Fogel said he lacked the time to inquire into whether new state procedures for lethal injections, adopted after his 2006 decision found serious flaws in the former procedures, contained adequate safeguards against a botched and agonizing death.

On Monday night, the Ninth U.S. Circuit Court of Appeals in San Francisco told Fogel to reconsider a stay of execution and compare the new procedures to the state's former practices. It was not clear whether such a review could be conducted before Thursday night, when Brown is scheduled to die.

The three-judge panel said it appeared that the execution date was chosen in part because the state's supply of one of the lethal drugs has an expiration date of Friday.

"It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug," the court said.

Earlier Monday, Brown won a brief reprieve from the state while his lawyers took their case against California's new lethal injection procedures to state and federal courts.

Hours after a Marin County judge refused to prohibit the state from putting Brown to death, prison officials announced a 45-hour postponement of the execution, which had been scheduled for 12:01 a.m. Wednesday.

Brown is now scheduled to die at 9 p.m. Thursday at San Quentin State Prison. Gov. Arnold Schwarzenegger issued a statement saying the reprieve was needed because a state court injunction against executions will not expire until Thursday.

The execution, if it proceeds, will be the state's first in nearly five years and apparently the last until next year.

Drug's expiration date

The state prisons' supply of the sedative Sodium Pentothal, the first of the three drugs used in lethal injections, has an expiration date of Friday, said Attorney General Jerry Brown's office.

California has not been able to secure more Sodium Pentothal, and other states have also run short of the drug. The manufacturer, Hospira Inc., told the Associated Press that new supplies will not be available until at least January.

That means that if Albert Brown's lethal injection is delayed again, beyond Thursday, the state might have to wait until 2011 to execute him.

Brown, 56, is condemned to die for raping and strangling 15-year-old Susan Jordan, who disappeared while walking to school in Riverside in 1980. He is one of seven inmates in California who have lost all appeals of their convictions and death sentences and are in line for execution, said Christine Gasparac, spokeswoman for the attorney general's office.

On hold since 2006

The state has more than 700 prisoners on Death Row. But executions have been on hold since 2006, when Fogel said flawed lethal injection procedures posed an undue risk of causing extreme pain, in violation of the constitutional ban on cruel and unusual punishment.

Fogel concluded that the state failed to train or supervise prison staff properly, lacked clear rules for preparing and administering the drugs, and conducted executions in a dimly lit chamber at San Quentin that prevented effective monitoring.

In response, state officials revised the regulations and built a new death chamber.

Fogel plans to examine the new procedures in another case. But when Riverside County prosecutors, with the attorney general's approval, obtained a death warrant for Brown, Fogel refused to intervene. Fogel offered Brown the option of a one-drug execution with a heavy dose of Sodium Pentothal and said it would avoid the risk of excruciating pain from the second and third drugs, paralytic and heart-stopping chemicals.

Brown's lawyers said the inmate could not make an informed choice by the judge's Sunday deadline because the state has provided few details of how it would conduct a one-drug execution. The new procedures are "different in name only" from the methods Fogel condemned in 2006, Brown's lawyers argued.

State lawyers countered that Brown, after passing up the chance for a one-drug execution, now was challenging the three-drug procedure as a "pretext for seeking to avoid execution by any means."

Loss in Marin County

Brown's lawyers also contested the new lethal injection rules Monday in Marin County Superior Court, saying they violated California law.

They said state officials who adopted the regulations had failed to document the reasons for the procedures or explain how they would be monitored. Officials also did not explain why they were conducting three-drug executions when a single drug was equally effective and less risky, Brown's lawyers argued.

But Superior Court Judge Verna Adams said she could grant a stay only if Brown would be harmed by state actions that he could show were illegal. The only harm his lawyers have alleged, she said, is the pain he would suffer if prison officials did not follow their own rules, which are designed to make sure the inmate is quickly rendered unconscious.

Brown "cannot prove he will suffer pain" if he is executed in accordance with the new procedures, Adams said. She said she would not "speculate that the Department (of Corrections and Rehabilitation) will violate its own regulations and procedures."

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